Suzlon Energy Ltd. v. Microsoft Corp.

                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

SUZLON ENERGY LTD.,                       
             Petitioner-Appellant,
              and                                No. 10-35793
RAJAGOPALAN SRIDHAR,
   Intervenor-Defendant-Appellee,
                                                  D.C. No.
                                               2:10-cv-0170-MJP
               v.                                  OPINION
MICROSOFT CORPORATION,
             Respondent-Appellee.
                                          
        Appeal from the United States District Court
          for the Western District of Washington
        Marsha J. Pechman, District Judge, Presiding

                    Argued and Submitted
             August 3, 2011—Seattle, Washington

                      Filed October 3, 2011

      Before: John T. Noonan and Milan D. Smith, Jr.,
  Circuit Judges, and Andrew J. Guilford,* District Judge.

                   Opinion by Judge Guilford




   *The Honorable Andrew J. Guilford, United States District Judge for
the Central District of California, sitting by designation.

                               18679
          SUZLON ENERGY v. MICROSOFT CORPORATION      18681




                        COUNSEL

Jeremy J. O. Harwood, New York, New York, for the
petitioner-appellant.

Blake Marks-Dias, Seattle, Washington, for the respondent-
appellee.

Michael A. Barcott, Seattle, Washington, for the intervenor-
defendant-appellee.
18682      SUZLON ENERGY v. MICROSOFT CORPORATION
                          OPINION

GUILFORD, District Judge:

   While the parties in this case raise issues of international
policy, constitutional rights, and the fortuities of the Internet
age, this case ultimately turns on the plain language of the rel-
evant statute. Suzlon Energy Ltd. (“Suzlon”) has demanded
that Microsoft Corp. (“Microsoft”) produce documents from
the Microsoft Hotmail email account of Rajagopalan Sridhar,
an Indian citizen imprisoned abroad. Microsoft objected to the
production and the district court agreed, finding that Sridhar
was entitled to the protection of the Electronic Communica-
tions Privacy Act (“ECPA”), 18 U.S.C. §§ 2510-2522, even
though he was a foreign citizen. We affirm.

                       BACKGROUND

   The facts of this case are straightforward and largely undis-
puted, with any disputed facts not affecting the resolution of
this case. Suzlon sought emails under 28 U.S.C. § 1782 to use
in a civil fraud proceeding pending against Sridhar and others
in the Federal Court of Australia (the “Australian Proceed-
ings”). Although Sridhar is a citizen of India and is impris-
oned abroad, the relevant emails are stored on a domestic
server by a domestic corporation, Microsoft. The district court
initially granted Suzlon’s petition for production of docu-
ments (“Production Order”). In response, Microsoft filed
objections that the district court deemed to be a motion to
quash.

   Microsoft and Sridhar raised several arguments below to
support the motion to quash. First, Microsoft argued that the
documents sought must be discoverable in the foreign pro-
ceeding. The district court rejected this argument based on
Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241
(2004), which held that nothing in the text of § 1782 imposed
such a limitation. Id. at 260. Second, Microsoft argued that
           SUZLON ENERGY v. MICROSOFT CORPORATION          18683
the subpoenas must comply with the Federal Rules of Civil
Procedure. But § 1782 states that the Federal Rules of Civil
Procedure only apply to the extent the order granting discov-
ery does not provide other procedures, and the Production
Order specified a procedure. Thus, the district court rejected
the second argument as well. Third, Microsoft and Sridhar
argued that production of the emails would violate the ECPA.
The district court agreed with this third argument, held that
the plain terms of the statute applied the ECPA to all persons,
and granted the motion to quash (“Quash Order”). Suzlon
now appeals the district court’s finding that the ECPA applies
to foreign citizens such as Sridhar, focusing on the third argu-
ment. Suzlon also argues that Sridhar’s participation in this
suit is an implied consent to the production of documents.

                         DISCUSSION

1.   ECPA

   The threshold question in this case is whether the plain lan-
guage of the ECPA extends to foreign citizens. See, e.g.,
Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004) (“The start-
ing point in discerning congressional intent is the existing
statutory text[.]”) If the Court finds that the plain language of
the statute is clear on its face, the Court does not need to con-
sider the legislative history and policy of the ECPA, although
they may still be instructive. See id. at 539 (finding it “unnec-
essary to rely on the legislative history” when the plain lan-
guage of the statute was clear, but finding it an “instructive”
way to “lend support” to its holding); see also Am. Rivers v.
FERC, 201 F.3d 1186, 1204 (9th Cir. 1999) (“[W]e are mind-
ful that this Court steadfastly abides by the principle that ‘leg-
islative history—no matter how clear—can’t override
statutory text.’ ”) (quoting Hearn v. W. Conference of Team-
sters Pension Trust Fund, 68 F.3d 301, 304 (9th Cir. 1995)).
18684     SUZLON ENERGY v. MICROSOFT CORPORATION
  1.1   Statutory Framework of the ECPA

   As noted, Suzlon filed a petition for production of docu-
ments to assist in the Australian Proceedings. Suzlon sought
this relief under 28 U.S.C. § 1782, which states in part:

    The district court of the district in which a person
    resides or is found may order him to give his testi-
    mony or statement or to produce a document or other
    thing for use in a proceeding in a foreign or interna-
    tional tribunal, including criminal investigations con-
    ducted before formal accusation. The order may be
    made pursuant to a letter rogatory issued, or request
    made, by a foreign or international tribunal or upon
    the application of any interested person and may
    direct that the testimony or statement be given, or the
    document or other thing be produced, before a per-
    son appointed by the court. . . .

   [1] The Ninth Circuit has previously held that the ECPA
limits § 1782 by making it illegal for an entity that provides
an electronic communication service to the public to produce
the contents of its stored communications. See Theofel v.
Farey-Jones, 359 F.3d 1066, 1071-72, 1077 (9th Cir. 2004)
(finding that a civil subpoena to plaintiff’s internet service
provider violated the ECPA). The relevant provision of the
ECPA states that “a person or entity providing an electronic
communication service to the public shall not knowingly
divulge to any person or entity the contents of a communica-
tion while in electronic storage by that service.” 18 U.S.C.
§ 2702(a)(1). The ECPA defines “electronic communication
service” as “any service which provides to users thereof the
ability to send or receive wire or electronic communications.”
18 U.S.C. § 2510(15). The ECPA defines a “user” as “any
person or entity who — (A) uses an electronic communica-
tion service; and (B) is duly authorized by the provider of
such service to engage in such use.” 18 U.S.C. § 2510(13)
(emphasis added).
           SUZLON ENERGY v. MICROSOFT CORPORATION          18685
   [2] The question now presented is whether the protections
of the ECPA extend to the contents of communications of for-
eign citizens. In other words, does the mere fact that Sridhar
happens to lack U.S. citizenship mean that Microsoft has to
produce his emails under a § 1782 order? The answer depends
on the proper interpretation of “any person” in § 2510(13). To
resolve this dispute, the Court turns to the plain text of the
statute.

  1.2   Plain Text of the ECPA

   [3] The Court affirms the district court’s finding that the
plain text of the ECPA applies its terms to “any person,” with-
out qualification. 18 U.S.C. § 2510(13). Any person means
any person, including foreign citizens.

   The Court also finds that the statute as a whole confirms
that Congress intended the term “any person” to cover non-
citizens. Two strong arguments bolster this conclusion. First,
18 U.S.C. § 2702(b) and (c) list numerous exceptions to the
rule as set forth in § 2702(a), which prohibits the knowing
divulgence of the contents of a communication while in elec-
tronic storage. But neither § 2702(b) nor (c) list citizenship as
an exception.

   [4] Second, 18 U.S.C. § 2510(13) defines a user as “any
person or entity who — (A) uses an electronic communication
service; and (B) is duly authorized by the provider of such
service to engage in such use.” The statute starts with the very
broad term “any person or entity” and then limits it with two
conjunctive qualifications. Microsoft and Sridhar argue that
Congress could have added other requirements, such as U.S.
citizenship, if that were the intent behind the ECPA. The fact
that Congress did not do so indicates that it did not want to
impose any additional limitations.

  The reasoning of O’Rourke v. U.S. Dept. of Justice, 684 F.
Supp. 716 (D.D.C. 1988) supports the Court’s analysis. In
18686      SUZLON ENERGY v. MICROSOFT CORPORATION
O’Rourke, the court found that the phrase “any person” in the
Freedom of Information Act (“FOIA”), 5 U.S.C. §§ 551 et
seq., should be read according to its plain meaning. Id. at 718.
The court stated, “On its face, then, the statute’s provisions
are not restricted to citizens.” Id. The O’Rourke court con-
trasted the FOIA language with a provision in the Privacy
Act, 5 U.S.C. § 552a(a)(2), which specified that its provisions
apply only to “a citizen of the United States or an alien law-
fully admitted.” Id. The O’Rourke court concluded that “Con-
gress thus distinguishes between a ‘citizen’ and ‘any person’
when it wishes to do so.” Id. Like the FOIA statute, the ECPA
does not facially restrict its applicability to U.S. citizens. And
as the court recognized in O’Rourke, Congress knows how to
explicitly limit a statute to U.S. citizens when it intends to do
so.

   [5] The Court finds that the plain language of the ECPA
extends its protections to non-citizens. The Court is therefore
obligated to enforce the statute as written. See Lamie, 540
U.S. at 534 (“It is well established that when the statute’s lan-
guage is plain, the sole function of the courts—at least where
the disposition required by the text is not absurd—is to
enforce it according to its terms.”) (quoting Hartford Under-
writers Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6
(2000) (internal quotation marks omitted)).

  1.3   Legislative History of the ECPA

   Because we find that the plain language of the ECPA is
clear, we accept the district court’s finding that it did not need
to consider the legislative history of the ECPA. Stated other-
wise, “[l]egislative history cannot trump the statute.” Bonne-
ville Power Admin. v. FERC, 422 F.3d 908, 920 (9th Cir.
2005).

   Still, the Court will analyze the statute’s history for its
instructive value. Suzlon argues that the ECPA was enacted
           SUZLON ENERGY v. MICROSOFT CORPORATION         18687
against a backdrop of Fourth Amendment protections, citing
the following passage:

    With the advent of computerized record keeping sys-
    tems Americans have the ability to lock away a great
    deal of personal and business information . . . [T]he
    law must advance with technology to ensure the con-
    tinued vitality of the fourth amendment. . . . Con-
    gress must act to protect the privacy of our citizens
    . . . The Committee believes that [this Act] repre-
    sents a fair balance between the privacy expectations
    of American citizens and the legitimate needs of law
    enforcement agencies.

S. Rep. No. 99-541, at 3557-59 (1986).

   This passage indicates that Congress’ primary intent in
passing the ECPA was to protect the privacy interests of
American citizens. Suzlon therefore argues that the intent of
the ECPA was to protect only American citizens. But the fact
that the ECPA was intended to shore up Fourth Amendment
rights does not mean that Congress specifically intended to
exclude foreign citizens from the scope of the Amendment.

   To the contrary, to fully protect American citizens it might
be necessary to extend the ECPA to all domestic communica-
tions, regardless of who sent them. Further, Suzlon’s restric-
tive reading of the ECPA would put email service providers
in an untenable position. By limiting the ECPA only to those
people entitled to Fourth Amendment protection, as urged by
Suzlon, an email service provider would need to assess
whether a particular account holder was at all times a U.S. cit-
izen, or later became a citizen, or was a resident alien with
some Fourth Amendment protection, or if there were other
reasons to provide Fourth Amendment rights. This would be
a costly, fact-intensive, and difficult determination. But under
Microsoft’s interpretation of “any person,” it’s clear that the
ECPA at least applies whenever the requested documents are
18688      SUZLON ENERGY v. MICROSOFT CORPORATION
stored in the United States. The Court does not address here
whether the ECPA applies to documents stored or acts occur-
ring outside of the United States. See Zheng v. Yahoo! Inc.,
2009 WL 4430297 at *4, No. C-08-1068 MMC (Dec. 2,
2009) (finding that the EPCA does not cover acts outside of
the United States).

   Suzlon also argues that nowhere in the legislative history or
text of the ECPA does Congress address civil litigation, indi-
cating that perhaps Congress intended for the ECPA to only
apply to government law enforcement. This argument ignores
Ninth Circuit cases holding exactly the opposite. Theofel, 359
F.3d at 1071-72, 1077 (applying the ECPA to subpoena
requests). As before, even if Congress’ most pressing concern
was law enforcement agencies issuing subpoenas, that does
not mean that Congress was not also concerned about civil lit-
igants issuing discovery requests. Declaring an implicit
exception to the ECPA for civil litigation would erode the
safety of the stored electronic information and trigger Con-
gress’ privacy concerns. See id. at 1073-74 (finding that
because the “subpoena caused disclosure of documents that
otherwise would have remained private[,]” it invaded “the
specific interests that the [EPCA] seeks to protect.” (citations
and quotation marks omitted)).

   [6] We conclude that nothing in the legislative history
clearly refutes the plain language of the text. In fact, the
underlying policy implications of the statute are most consis-
tent with the plain text of the ECPA. Thus, the Court remains
firm in its initial finding that the ECPA unambiguously
applies to foreign citizens.

  2.    IMPLIED CONSENT

   [7] As a further argument, Suzlon claims that Sridhar gave
his implied consent to the production of his documents. The
district court’s Quash Order did not address this point, per-
           SUZLON ENERGY v. MICROSOFT CORPORATION          18689
haps failing, as does this Court, to see the logic of Suzlon’s
claim.

    Suzlon argues that under Australian civil litigation rules, a
litigant is obligated to list and disclose documents that would
include the emails at issue, much as a party in the United
States has a duty to produce certain documents under the Fed-
eral Rules of Procedure. Sridhar is a defendant in a case in
Australia. Thus, Suzlon argues that Sridhar has somehow con-
sented to the production of his emails because he has a duty
to produce documents under the Australian rules of court.

  Under Suzlon’s own reasoning, Sridhar himself is the per-
son who should be responsible for disclosing his own emails.
Suzlon’s supposed implied consent argument has no bearing
on its efforts to get those emails from Microsoft, who is not
a party to the litigation. Not surprisingly, Microsoft takes no
position on the issue of whether Sridhar could be deemed to
have given implied consent in this particular case.

  [8] In contrast, Sridhar vigorously argues—both in his
papers and at oral argument—that his actions do not establish
implied consent. Sridhar argues that he has consistently
objected to the disclosure of his Hotmail emails and, accord-
ingly, has not consented to their production.

   [9] Nor has Sridhar consented to Microsoft producing his
emails on his behalf. He reasonably relied upon his Hotmail
service agreement, which stated that his emails would be dis-
closed only according to U.S. law and under other circum-
stances not relevant here. Microsoft never told Sridhar that his
communications might be monitored or disclosed. Thus, there
is no argument that Sridhar waived his reasonable expectation
of privacy by continuing to use the service after such notice.
See, e.g., Flagg v. City of Detroit, 252 F.R.D. 346, 366 (E.D.
Mich. 2008) (finding that implied consent rests on a theory of
waiver, such as when a person uses a service after being
informed of a policy of disclosure and monitoring.)
18690      SUZLON ENERGY v. MICROSOFT CORPORATION
   [10] We find that Suzlon’s argument for implied consent
fails.

                       CONCLUSION

   The ECPA protects the domestic communications of non-
citizens like Sridhar. Thus, the decision of the district court
denying the production of documents is AFFIRMED.